Connecticut Advisory Opinions July 25, 2002: AGO 2002-026 (July 25, 2002)

AGO 2002-026.

Secretary of the State for the State of Connecticut

Office of the Secretary of the State

30 Trinity Street

Hartford, CT 06115-0470

Dear Secretary Bysiewicz:This letter is in response to your request for a formal legal opinion as to whether your office is "authorized to issue or accept primary petitions of candidates for state and district offices?"FN1 It is our understanding you are questioning whether you are required to place the name of a candidate for state or district officeFN2 on the Democratic or Republican Party primary ballot based solely on the fact that the candidate has obtained the signatures of a certain percentage of the political party's registered voters within the candidate's district. We further understand that this question is the result of a judicial ruling in Campbell v. Bysiewicz , No: 3:02CV488 (PCD)(D.Conn.), in which Judge Dorsey enjoined you from enforcing Conn. Gen. Stat. §§ 9-400, 9-410(c) and 9-416, which set forth the system governing access to the major political parties' primary ballots in state and district races. Although Judge Dorsey enjoined you from enforcing these statutes, he did not specify an alternative system to govern the process and expressly denied the plaintiffs' request for an order compelling you to place their names on the primary ballots if they submitted petitions with the signatures of a certain percentage of enrolled party members.

We conclude, based on our review of the relevant statutes and caselaw, that under current law you have no authority to issue a petition to a candidate for state or district office or to place the name of such a candidate on the Democratic or Republican Party primary ballot based solely on the fact that the candidate has collected petition signatures from a certain percentage of the registered voters within the district in question.

The Connecticut Constitution provides that "[t]he secretary of the state shall . . . perform all such duties as shall be prescribed by law." Conn. Const. Article IV, § 23. Accordingly, the authority of the Secretary of the State is embodied in the provisions of the Connecticut General Statutes.

The statutes that govern the process whereby nominees for state and district office are selected are set forth in Title 9, Chapter 153, sections 9-372 through 9-462 of the general statutes. As Conn. Gen. Stat. § 9-373 makes clear, all nominees for such offices "shall be chosen as provided in this chapter."

Under Chapter 153, the major political parties are required to hold conventions in order to select their party-endorsed candidates for state and district office "in a manner conforming with applicable law and with the rules of the party calling such convention." Conn. Gen. Stat. § 9-382. Section 9-400 provides that within fourteen days after the close of the state or district convention, a candidate for nomination by a major political party for state or district office, who has received at least fifteen per cent of the votes of the convention delegates present and voting, may file a certificate with the Secretary of the State stating his intention to be a candidate (the "15% rule"). If more than one candidate files such a certificate for a given state or district office, Conn. Gen. Stat. § 9-400 requires the Secretary of the State to notify the town clerks within the district that a primary will be held. If only one candidate receives fifteen percent of the delegate vote, Conn. Gen. Stat. § 9-416 provides that no primary is required to be held. Nothing in § 9-400, § 9-416 or any other provision of Chapter 153 permits a candidate for state or district office to get his name on a major political party's primary ballot by any process other than by satisfying the 15% rule.FN3

The same provisions governing access to the primary ballot for state and district offices that are set forth in the state statutes are also embodied in the rules of the state Democratic and Republican parties. Specifically, the rules of the Connecticut Democratic Party provide that:

The nominations of the Democratic Party to all public offices . . . shall be made in all respects as provided in the State Primary Law, as the same may be amended from time to time, except that no person may conduct a primary for any State or District office unless such person has received at least fifteen percent (15%) of the votes of the convention delegates present and voting at a duly called and conducted convention for the endorsement of candidates for such offices, in accordance with the provision of Article III of these rules.

Connecticut Democratic State Party Rules, Article VI (emphasis added). Similarly, the Connecticut Republican Party rules provide that:

Within fourteen (14) days following the close of the state convention, a candidacy for nomination by the Republican party to a state office may be filed by or on behalf of any person whose name appears upon the last completed enrollment list of the Republican party in any municipality within the state and who has received at least 15% of the votes of the state convention delegates present and voting on any roll call vote taken on the endorsement or proposed endorsement of such candidate for such state office, whether or not such candidate was endorsed, by the filing with the Secretary of the State, of a certificate, signed by such candidate and attested by either (1) the permanent chair or presiding officer of the state convention; or (2) the secretary of the state convention, that such candidate received at least 15% of such votes and that he consents to be a candidate in a primary of the Republican party for such state office.

Connecticut Republican State Central Committee Rules and Bylaws, Article III, § 12 (emphasis added). Although this particular rule applies only to candidates for state office, a similar provision in Article IV of the Republican Party rules imposes the same requirement on candidates for district office. See Connecticut Republican State Central Committee Rules and Bylaws, Article IV, § 12. Thus, under both the Connecticut Democratic and Republican party rules, a candidate for state or district office cannot get his name onto the party's primary ballot for state or district office without first obtaining 15% of the delegate votes at the party's state or district convention.

Given the fact that Judge Dorsey has enjoined the Secretary of State from enforcing the provisions of Conn. Gen. Stat. § 9-400 and 9-416, the question has arisen as to whether you, as the Secretary of the State, may fill the gap in the statutes by permitting candidates to gain access to the major political parties' primary ballot for state and district office by submitting petitions in support of their candidacies, despite the fact that nothing in the statutes provides for such a process in state and district office primaries and the use of such a process would directly conflict with the provisions of the parties' rules. We conclude that such a petition process would not be permissible under the specific circumstances presented because there is no explicit statutory authority for such a process. The lack of any statutory direction, in light of the judicially created gap, would leave you to contrive an entirely new process. For example, you would have to create out of whole cloth the specific petitioning requirements for a multi-town district, including: the percentage of signatures of registered voters needed by a petitioner to qualify for a primary; whether that percentage is necessary in each town (or portion of a town) making up the district, or whether the percentage can be achieved in fewer than all the district's towns; and the specific deadlines for filing the petitions, checking the petitions, and forwarding them to your office for tabulation. These standards must be developed by the legislature and/or the political parties.

In addition, the United States Supreme Court has made very clear that political parties and their members have a constitutionally protected right of association, including the right to determine the process for selecting their party nominees, that must be respected by the States. See , e.g. , California Democratic Party v. Jones , 530 U.S. 567 (2000); Eu v. San Francisco County Democratic Central Committee , 489 U.S. 214 (1989); Tashjian v. Republican Party of Connecticut , 479 U.S. 208, 224 (1986).

In California Democratic Party v. Jones , 530 U.S. 567 (2000), the Court struck down a state statute that conflicted with the rules of four political parties prohibiting individuals who were not party members from voting in the parties' primaries. According to the Court, the statute -- which required political parties to hold "blanket primaries" in which any person could vote, regardless of party affiliation -- violated the parties' First Amendment rights of association by forcing parties "to adulterate their candidate-selection process -- the basic function of a political party." Id. at 581 (internal quotation marks omitted). In so holding, the Court emphasized that its cases "vigorously affirm the special place the First Amendment reserves for, and the special protection it affords, the process by which a political party 'select[s] a standard bearer who best represents the party's ideologies and preferences.'" Id . at 575, quoting Eu , 489 U.S. at 224. This is because "[f]reedom of association would prove an empty guarantee if associations could not limit control over their decisions to those who share the interests and persuasions that underlie the association's being." California Democratic Party , 530 U.S. at 574. Thus, the Court held that it is for the party, not the State, to determine whom it will permit to vote in its primaries because "[i]n no area is the political association's right to exclude more important than in the process of selecting its nominees." Id . at 575.

Similarly, in Eu v. San Francisco County Democratic Central Committee , 489 U.S. 214 (1989), the Court held that a California law prohibiting the governing body of a political party from endorsing candidates in party primaries violated the associational rights of the party and its members. As explained by the Court, "[f]reedom of association means not only that an individual voter has the right to associate with the political party of her choice, but also that a political party has a right to identify the people who constitute the association, and to select a standard bearer who best represents the party's ideologies and preferences . . . . Depriving a political party of the power to endorse suffocates this right." Eu , 489 U.S. at 224 (internal quotation marks and citations omitted). Thus, "a State may enact laws to prevent the disruption of the political parties from without but not . . . laws to prevent the parties from taking internal steps affecting their own process for the selection of candidates." Id . at 227 (quotation marks omitted); see also Tashjian , 479 U.S. at 224 (state could not, in face of a contrary party rule, prohibit independents from voting in the primary because the "[p]arty's determination of the boundaries of its own association, and of the structure which best allows it to pursue its political goals, is protected by the Constitution").

As these cases make clear, it is for the political parties, not the State, to determine the procedures whereby the parties select the standard bearers who best represent their ideologies and preferences. Under the present circumstances, in which the state Democratic and Republican parties have adopted rules that make no provision for allowing candidates for state or district office to petition onto the primary ballot and instead explicitly require that such candidates satisfy the 15% rule, it would be wholly inappropriate for the Secretary of the State to adopt a procedure for gaining access to the primary ballot that directly conflicts with the parties' rules. Accordingly, we conclude that the Secretary of the State is not authorized to permit candidates for state or district office to submit petitions in order to gain access to the Democratic or Republican party primary ballot.

Very truly yours,

RICHARD BLUMENTHAL

ATTORNEY GENERAL

Jane R. Rosenberg

Assistant Attorney General

RB/jrr

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